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tv   Supreme Court Landmark Case Brown v. Board of Education  CSPAN  November 24, 2015 12:00am-1:31am EST

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lebanese. i lived in a country where for 15 years, it was broken. we felt at times it would never be patched up again. analytically saying something is broken is true, but politically it does not mean you have to accept it. you can let go of the syria process. at one point you will be legitimized. people who sit around the table and say these are the borders, let's accept them. i do not have anything against it. nations are born and die, maybe one day lebanon will disappeared. iraq has more or less disappeared. where all of us today bound to a process which is called geneva. we are -- want a democratic syria. if these words mean something i
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say let's do it. let's sit on the table with the syrians if they accept this part and say ok, you cannot live together, let us see where are the boundaries of your, it could state, aederate confederate state with parts of iraq. people who think that all state order in the labonte is dead. it will be replaced by something. my worry is how to shorten this limbo between something which is dead and something to be born and how to do it at the list -- least cost possible. --a political science scientist and a citizen that is what worries me. nothing is sacred in these
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issues. i know some syrian friends would jump from their chair. syria is comatose. you can say this but with a lot of effort. you do not have to say this, let's try to transform it into something else at the least cost possible. but this again leads a little bit -- needs a little bit of leadership. you are going to ask me. there andrefugees out and thens that the west eu and the united states and a areer of other countries signatories of legal documents. that promise that refugees are going to be treated differently than migrants or irregular
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migrants and this is an international responsibility. i would like to remind us all. i would also not want to walk thathaving listened somehow i am an advocate. >> i never said that. >> just a second. let me finish. all i said was to respond to keepsemark and brookings transcripts of these debates. you can always go in look. a branch of islam is at war with the western world. i said that branch is not in your just with the west but with the muslim world and with syrian people. that is the only point i made. you did not need to cite big
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literature that argues to the contrary. we have run out of time. >> we're basically out of time. a frightening of subjects. the wasteunged into to maintain our values, the ways to fight isis and the struggles over leadership and structure. sure we resolved anything but i hope we have given you a lot of food for thought. i appreciate you coming and please join me in thanking the panel. [applause] french president francois hollande is an washington, d.c. for meetings with president obama. they will hold a joint news conference and you can see it live at 11:30 a.m. eastern here on c-span. on the next "washington
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" the discussion of why he thinks u.s. military action against isis is illegal and what can be done to legalize the war. after that really sure -- billy schorr looks at hunger in the u.s. and white one in five families struggles to put food on the table. pleasure comments, facebook comments, and tweets. c-span has your coverage of the road to the white house 2016 where you will find the candidates, the speeches, debates, and most importantly, your questions. this year we are taking our road to the white house coverage into classrooms across the country with our student can contest, giving students the opportunity to discuss what important issues they want to hear the most from the candidates. follow c-span's student cam on tv, the contest
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radio, and online at coming up on c-span, a landmark case looks at the 1954 decision in brown versus ward of education. british prime minister david cameron on u.k. national security. after that at the brookings institution, the panel examines the future of europe following recent terrorist attacks. >> all persons having business court ofe honorable the united states draw near and get their attention. >> landmark cases, c-span's special history series produced in cooperation with the national restitution center, ignoring the human -- exploring the human stories and constitutional dramas behind 12 historic
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decisions.rt arguments number 18, row against wade. >> quite often in many of our most famous decisions are ones that the court took that were quite unpopular. >> let's go through a few cases that illustrate very dramatically and visually what ofmeans to live in a society 310 million different people who help stick together because they believe in the rule of law. welcome toning and landmark cases. we are two thirds of the way through our 12th week series looking at historic supreme court decisions. -- 1954the 1950 force case of brown be board of education.
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we will this into linda brown on the roots of this case. a mild-mannered black man took his seven-year-old dr. -- daughter by the hand and walked briskly to the all-white school and tried without success to enroll his child. -- that was long overdue. my father would arrive home to find my mother upset because i had to take a white -- a walk and catch a school bus and be .ust two miles across town i can remember that walk.
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i could only make half of it some days because the cold would get to bidders for a small child fair. i can still remember taking that bitter walk and the terrible cold that would cause my tears to freeze up on my face. >> that is linda brown talking about her experience as a school child and how her story led her to the supreme court and one of its landmark decisions. we will learn more about that case, how it came to the court, and what it's implications are. welcome. and jeffrey rosen is at the table. the president and ceo and has been our hardware for this
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entire series and he is the author of numerous books on the supreme court including the supreme court, the personalities and rivals raise that defined america. >> your team has in a great job and it is such a thrill. talk we get started let's very big picture. in this case. what was the heart of what was decided here? >> the supreme court in this case considered the question of whether state-mandated deliberation and schools was constitutional and it was an opportunity to reconsider plessy be ferguson which was the 1896 case in which found that segregation on railcars was within the constitution. >> why did this become a landmark decision? the court faced the
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stain of this decision and fulfilled the promise of the construction -- reconstruction amendment. it was designed to ensure equality of civil rights and justice harlan has dissented plessy versus ferguson, thought it was obvious that a fundamental right was a fundamental civil right. the basic insight that the court butgnized was that separate equal is inherently unequal into separate people because of their race is stigmatizing integrating. the fact that it took almost 100 wass to recognize what obvious to anyone in the south as justice harlan said in plessy, everyone knows that the purpose of segregation was to degrade african-americans and the fact that it took so long for the court and the country to recognize that is what made brown such a landmark in the 20th century. but: it is known as brown
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one of those factoids that people who are learning along with this would be surprised is brown is five cases. explain how that works, the consolidation. are a bunch of them because they are not well known today. one of them involved the d.c. government involving whether the federal government as well as states could have separate that cased to decide was bowling versus sharp. use and i'm waiting for my chance to bring out my constitution, they had to use the fifth amendment which prevents congress from depriving any person of to process and the court read into that clause in a .old protection component basically they said it would be unthinkable if states cannot discriminate then d.c. can but there were a bunch of other interesting cases including one
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,hat was prompted by protests by the plaintiffs, here they are. the only win was a case out of delaware. order thatourt did african-americans be admitted to the segregated schools, the davis decision came out of virginia which challenged segregation and prince edward county and there was a case called riggs versus elliott from south carolina which was the first of the cases. there were human stories behind each of those cases and it is almost a coincidence that linda brown so movingly spoke became the face of all five cases. court decides the to enjoin cases like this and give that case its title. in thisnk that circumstance it consolidated the pieces because they raised the same issue with the exception of
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bowling versus sharon. they were consolidated for convenience and it made sense to consolidate them and consider this issue as it was raised in these several states. the naacp's strategy involved filing cases and the states -- in the states where the states were most stark. as to the reality that they were able to show in brown and that was that separate is never truly equal. that is what the court decided. that justice brown's decision in plessy where he said that if there is a harm of separation, segregation it is only because blacks are putting that construction on it. in brown the court recognized rightly that the problem with segregation in schools and was thaton generally
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it was a stigma, a sign that blacks were considered inferior. of the things that has made this series work is your participation. we will take calls and another 20 minutes. here are the phone numbers. if you begin dialing now you can get into the queue. please be careful when you are dialing those numbers as well. .ou can send us a tweet make sure you use the # landmarkcases. there is a discussion underway on our facebook page. facebook site. there is comments coming in underneath and you can be part of that discussion and we look forward to hearing what you have to say about this case and to hear your questions about it. i do want to learn more about
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plessy versus ferguson, 1896. you mentioned that it was a transportation case. jeffrey: it was. this was a time when jim crow was not yet up and running. a lot of requiring segregation was not welcomed universally by railroads themselves. it was challenged as a violation of the equal rejection clause and justice brown held for the court as long as the cars are equal there is no problem because inequality -- the facilities is all the constitution requires. justice john marshall harlan, one of the greatest of the 19th century, this is a kentucky former slave state. he is a know nothing turned abolitionist and he said i would rather be right than be consistent. when he is writing the decision dissenting from the court's decision to strike down the civil rights act of 1875, his
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the 10 that- puts dred scott write the decision. basicallyfense he says that everyone knows that the real purpose of separation was not for the convenience of both parties but to degrade and stigmatize african-americans. he sent in respect of civil the constitution neither knows or tolerates classes among citizens, the cost to show and casteorblind, there is no here. he says the white race at the moment is preeminent so it will continue to be if it maintains its traditions but in respect to -- theights there is no constitution is colorblind. he was continuing this distinction of lincoln and other
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reconstruction people at the and socialn civil rights. he was saying you have to give civil rights to everyone but we're not mandating social equality. that has an uncomfortable tone for us. i think that is right. it is almost as if what justice harlan is saying is it is overkill to dirty up the constitution with these kinds of racial classifications. thatan read the preface to wonderful part of his opinion where he says the constitution is colorblind and in a way saying because of social necessary it is not to stipulate in the law to have besmirched by this practice of segregation. jeffrey: this dissent is so important that thurgood marshall reads it a four heat argued
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brown versus board of education. nowadays the huge question is whether when harlan said the constitution is colorblind did he mean that all racial classifications are impermissible or was he saying it is just with respect to civil rights that the constitution cannot have racial classifications and is he saying no classification or only classifications that affirm a caste system and this is the big debate over affirmative action. the entire history of what the equal protection clause means is set up in that single defense. gives rise to the next decision. host: plessy versus ferguson legalist separate but equal. did it give rise to the gym crow laws or with a have happened
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anyway? itt is a hard question but is probable that after the compromise of 1870 61 the republican party in exchange for winning this contested election got out of the business of forcing reconstruction would not have had the force of will to actually resist jim crow as it arose. i would not say, i would not but plessy caused jim crow it could have come out the other way and my have stopped it. ascribe toould not the supreme court kind of power at that time. it was pretty late in the day. politics of the situation are really important but it is an important indication from the greatwhich there was no outcry in the public suggesting that by this time there had been
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a consensus reached that the south would do with the south would do. in terms of race relations. host: i need to step forward to 1940's america where things are moving in a more positive election. the war in effect of the contributions that african americans made during the war or in 1947 there was a desegregation of the armed forces. and the sports world, jackie robinson integrated baseball. how are things beginning to shift in the late 1940's? tomiko: you put your finger on something that is important and that is the impact of the war. in terms of african-americans serving in the war but then coming home to this country and being mistreated including because of the segregation laws. -- beingstreated mistreated by virtue of the law but also experiencing terrible incidents of violence.
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and the just -- the juxtaposition of the soldiers having fought hitler and his creed with their treatment here in this country where they felt as if they were experiencing the same kind of ideology in this country was enough to make the soldiers final in the struggle for civil rights. other things that were happening were that african americans had migrated to the north which meant that they were a force in politics which was important to changing a sense of where african-americans belong in society. you mentioned the movements in sports which were very important. all of which was to say african-americans were gaining stature in they also were beginning more so than ever to think in terms of resisting these jim crow laws.
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host: thurgood marshall will become an important player. later on he becomes the first american appointed to the supreme court but in 1940 what was he doing? he has founded the naacp defense and education fund to launch an illegal campaign against segregation and he does so with the strategic brilliance that has come to be seen as decisive in the brown victory. he looks at public opinion and -- and sees the force that tomiko has described and the presidency is turning against segregation because of the cold war. truman disintegrates the truman andd eisenhower administrations both are supporting desegregation. thurgood marshall looks at the country as a whole and says , a majority of
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states have segregation. segregationacking in law school and graduate school admissions and then attacking schools. he does not argue that plessy versus ferguson should be overturned. he said -- he attacks on equal facilities. he said you're not providing an education to african-americans in this separate law school you set up is patently unequal. a the mclaughlin case graduate student is demeaned by having to sit separately. finally there is the big debate about whether to call that plessy should be overturned and public school disaggregation should be attacked. host: let's take a look at this map that shows you what the public school system look like.
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segregation was required. the blue states, no segregation laws and the green states in the northeast and midwest, segregation was prohibited so that is the situation going into the -- using the legal system to approach segregation in schools. we will listen to thurgood marshall talking about the legal system and his thoughts on how to use the courts to address this problem in america. >> there is the importance of law in determining the condition of the negro. franchise segregated by law.
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i submit the history of the negro in this country demonstrates the importance of giving -- getting rid of [indiscernible] and sticking to the security of new friendly laws, federal, local.and local area and thurgood marshall chose the law. tomiko: the strategy that was implemented by thurgood marshall and charles hamilton houston, the blueprint was that it was gradual and it was brilliant ultimately. it also was daring and risky in the minds of others at that time who were equally committed to black freedom. randall,ke a. philip roger baldwin were skeptical of using the court and the law
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emancipation, social change for african-americans. partly this was because people were interested in an interracial labor movement as the path to equality. there are those who thought that courts are only as good as the personnel and it can be expected that the judges would reflect the racial attitudes of the majority of the population. therefore why think that the courts would be a good venue for vindicating african-american rights? theyhose were who said were able to prevail. discrimination could continue notwithstanding the change in the law which is perhaps the most profound criticism. and i have tomade say that all of those critics were onto something. the difference between
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constitutional law in theory and on the books and on the ground. alternately all of these people were saying that individuals are the face of the law that people experience on an everyday basis and they were skeptical that individuals would come through in a way that marshall imagined. learn how the story of the brown family made its way to a federal case. first jeffrey rosen, kathy on twitter who asked did brown overrule plessy, brown was limited to education. jeffrey: brown did overrule plessy. it was applied to schools and in subsequent cases the court applied it to disintegrate swing pools and other facilities. the main question is should plessy be overturned and brown be overturned. host: what the color might be
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getting at is the way in which the opinion was written and the justicet in the opinion warrant writing for the court used language saying to the extent that there is anything in plessy and consistent with what we're saying then we pull back from the principle of plessy. so it was not the kind of robust language of overruling that you might see in some other cases in a think that was by design. it was a strategy for the court to try to be [indiscernible] thatey: there is another is exactly right. there are other parts of the opinion that by failing clearly to say segregation was wrong at the time of plessy and it is wrong now gave critics of brown the chance to resist it.
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says whatever may have been the state of public education at the time of the 14th amendment, now it is important and it has to be given on equal terms. there is the famous [indiscernible] ofwhich the court coming off findings in the trial court cited the studies of kenneth clark that had found african-american children had lower self-esteem and were more likely to choose white dolls than african-american dolls and this was controversial and led people who were resisting the decision to say it was based on bad social science. a clearer overturning of plessy by have made it harder to resist brown and would have made it harder for critics of that footnote including justice clarence thomas who said the court was wrong to rely on sociological evidence basically saved a purpose and intent of segregation is to degrade and therefore plessy is overturned.
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host: good evening to you. ,aller: now, my first question did the framers believed that segregation was a violation of equal protection of the law given the fact that the nation's capital was segregated? and with this in mind could the brown decision have been made using a different interpretation and when the fifth amendment was passed it did not have an equal protection clause so in the bowling versus sharp case could the case have been decided using that interpretation? jeffrey: i will give it a shot. so read michael mcconnell's great article. originally -- it is the best
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attempt to create an originalist defensive brown. here's the bottom line. inre was those in congress 1868 and john bingham was among them without that basic civil rights had to be available to all. at the same time [indiscernible] to write a long study and it is pretty clear that people in 1868 amendment didhey not think that school had to be desegregated. people stood up in the congress and said do not worry, this will not apply to schools. to say that schools are covered, you have to move to 1875 when congress was more liberal. this is a problem for originalist. if you think what matters is what the framers and ratifiers. then brown is hard to justify and no current justice has done a great job in explain why it is
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consistent with original understanding. host: good evening. my comment is do you think that after hundreds of years of segregation and its adverse economic impact on black families that they in the past deserve some type of reparation? my question has been debated by a lot of people and i think that there are arguments to that effect. most people come to the conclusion that there are two problems, one of which is [inaudible]
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and the other of which is a concern about how one would assess the damages if one could convince the right people that reparations were appropriate, how would one go about figuring out what was owed? one might say that just give it a shot. has beenuestion that debated a lot but the problem is a political problem. caller: i am a vietnam veteran. that hase things devastated me is first of all respectedhas been everywhere. imperial colonial supremacy and cast racism has been -- was
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driven out all of the world, their livesout of because it was so intolerable. we were driving out that colonial mentality. here we talk about brown versus kent. it is so insane that we should hold this stupid prejudice. country with all the principles it has and people have learned to respect it all over the world yet we keep holding on to what was driven out all over the world with it was our -- armed or nonviolent, tired of they are tired of it everywhere on earth. thank you. i will say thank you for
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your service. the second thing i will say is that you make a fantastic point which is that the u.s. has been able to export democracy too many places and there are many nations that look up to us for our system for a system and yet it is true i would say that there is a chasm in many instances between when i called before law on the books and our aspirations as a country and as a people in everyday practice. partly that is a reflection of the fact that -- of something i said before which is something that the court was concerned .bout at various times that is the ability of law to change people's hearts or everyday practices. in order for there to be social change in the way and race relations in a way that you
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aspire to directly. it has to occur not only institutionally but interpersonally. in one of was used the lower court cases that you described earlier. because itesting documents the differences between white and black schools in this county but what is interesting is both sides, the plaintiffs and the defendants use these pictures stating they support their position so let's watch. >> these photographs are exhibits in the court case, davis versus the school board of prince edward county. the davis case was wrapped into the brown versus board of education. what we're looking at are the exteriors of the schools. here is a white school. it is a brick two-story structure in a neighborhood, landscaping, and sidewalks while here we have several buildings
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that compose a single school, some of which are brick, some are tarpaper, and in a rural setting. we move inside to the classrooms. here we have a white school in prince edward county. notice that the students seem relatively comfortable while we take a look at african-american are wearingldren codes, there is a very large heater in the middle of the room, this showing us just how cold it was in these rooms. moving on to other parts of the a classs, and we have in a white school. notice much of the furniture and appliances are relatively new and modern. while in the african-american schools is a much different story. in a basement, the materials are much older and also you can tell much more worn. submitted bys were
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plaintiffs and defendants to show that these facilities were not equal whereas on the defendant side they wanted to show that these facilities were just about equal. host: we have to talk about how one of those cases, the brown versus board of education made its way into the federal courts. first of all this is linda brown as we saw earlier. >> she was the daughter of -- he waswn who was and to peter, he was a welder. host: he was also a part-time preacher. they had him -- he chose to wear his caller which adds another dimension. jeffrey: he was approached by the naacp. the reason that they chose the brown case and not those of the
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cases was to avoid a dispute about whether or not the facilities were he. the fact that both sides in the prince georges case had the gall to present them and say we are equal was confusing and that is why he picked a school where there was no allegation of separate but equal facilities. that brown and she said in freezingion, her tears up and she walked to school, the fact that she had to walk six blocks to a school bus and then take this bus ride when there was this other school which was seven blocks from her house which she could walk directly to , for her and her father was an indignity and outreach that was self-evident and did not rely on whether the facilities were equal or not. in 1951.was filed the argument for the court, the
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naacp was represented arguing because -- topeka school board. can you tell us anything about should know that we about for the story? >> the important aspect of that opinion i would say is that although the judges rejected the of the two cases revealed, itcp had did include an effect indicating that segregation of schools was harmful which was incredible. for the naacp it is the issue controversial before the supreme court. this is a decision that on the merits was adverse to the naacp but in terms of that finding of
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factors, a little nodded in there that was very help. could you explain how these cases made it to the supreme court, where the justices looking for a case to decide this, what was the process for these cases were consolidated? jeffrey: there was a disagreement among the lower courts which increases the possibility the court will take the case. it was important that the president had -- the truman and eisenhower administrations had filed briefs. to a certain extent the court felt it could not avoid it. but then something very dramatic happened. i do not know if this is the
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time to tell the story. host: probably not. let's take two more calls and then we will talk about what the supreme court look like in 1915 -- 1952. this case was heard twice by two different courts. and we will talk about the drama . gary is in tampa, florida. you are on the air. welcome. i am aware that there were impeachable warren signs on southern highways. what i am curious is brown versus board of education, was it an issue in the presidential campaigns? i do not remember reading about it that it was a specific issue raised in any debates and i am curious to hear some feedback. i can't say that it was
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made a highly salient issue in politics certainly in the south where there was deep resistance to brown. debated in formal terms, it was certainly something that was talked about, warren was a focused, he was a person from which one wanted a pound of flesh. he was the representation of town in the court in the sense that court had been an activist in a way that it had never been before. i think it is clear that brown was an issue in politics generally. i am sure that at various moments there was an issue in presidential politics. it became an issue in presidential politics during the next and campaign and later on
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after the court had started to enforce the decision. space -- you on are on c-span. caller: i hope c-span will do another 12 historic cases. did justice hugo of thead been a member kkk and also the majority voting regain himself by to end school segregation? jeffrey: hugo black was appointed by roosevelt soon after he is appointed -- it was reported that he was in the clan. he gives a radio address and check it out on youtube. he says i did join the clan, i therefore resigned. i never rejoined. that is all i have to say at everyone says bravo.
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you have answered our questions and he was allowed to go on but the outcry which led to protests around his house must have made a deep impression on him because he joined some pathbreaking opinions recognizing racial equality in criminal procedure he wasnd he spent -- keen to vote to strike down segregation. some speculated it was to redeem his clan of membership. he is the only southerner who says at the conference there is going to be blood and people are going to die and we should announce a clearly are -- announce a clear rule and get out of here. he is bringing his political is him -- political-is him to bear. he was a clerk for hugo black. at one point he asked the justice wife did you joined the clan and there is the silence.
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if you were running for senate in alabama in the 1920's you would join the clan to. that was his excuse but he felt the need to redeem himself and perhaps he did some of that with brown. host: this is a great segue into what the court looked like. was fred justice benson. he was the truman appointee and in some cases described as a truman crony. he was joined by justices hugo black, tom clark, william a jackson, sherman minton, and stanley reed. last week we heard that vincent did not do a very effective job at bringing coalitions together. very divided court. in 1952, was it still very divided and was he having a bringing together
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two groups within the court that did not see i die? think the basic problem with vincent is his colleagues did not respect him very much. have thehe did not institutional authority that was necessary to try to bring the justices together. the position that is most important to talk about is the rivalry between jackson and frankfurter on the one hand and he grew -- hugo black and douglas on the other. and what that represented in terms of how the justices thought about the constitution. i'm sure jeffrey will have things to say about this. the thing to say about the first combination is that there was a belief in judicial restraint and a concern about the justices
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issuing holdings that were legal holdings and not political. a lot of concern about how to actually deal with plessy. plessy is a precedent that was on the books for a very long was and justice frankfurter concerned about how to justify the decision to overrule plessy. they become manifest in the first conference over brown. the colleagues do not respect vincent. frankfurt had threatened to -- vincent had threatened to punch frank for in the nose. they did not respect him. the initial vote is something like four votes to strike down segregation, black, douglas, and burden. three votes possibly to uphold
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it, vincent, rate from kentucky, and tom clark from texas and to who seemed undecided. frank frederick and jackson. they are in favor of judicial were new area they deal democrats but they do not think the court should be stepping in here. the initial vote is taken and it looks like segregation is going to win and then all of a sudden before the court can decide vincent drops dead of a heart attack. on the funeral train on the way home from the funeral frankfurter says to his colleagues this is the first indication i have ever had that there is a god. then warren comes in and you want to wait to hear what happened. host: i want to get the attorneys on the docket because there is a familiar name. the defendants attorneys included john davis who had been in three of our landmark cases. why was he at the helm in so
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many of these important cases? jeffrey: he was the presidential candidate, unsuccessful presidential candidate, turned one of the great appellate lawyers of his age. haired, you could call him a strict constructionist. he said i do not believe in a living constitutionally -- constitutionalist. he really did feel like he was defending southern traditions and this is an easy case. he said the courts have affirmed segregation, the text does not forbid segregation. the original understanding allowed segregated schools, he thought he was going to win easily and for him he is so invested in this case that after the oral argument, this is in book, simpler's justice gives the wonderful human stories so well. davis has tears in his eyes and
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thurgood marshall said that is how he was interested in maintaining segregation. on the lead side was thurgood marshall. there are some big names. robert names -- robert carter, spottswood robinson, lewis goodng, sequenom are a part of the delaware case and george hayes and james neighbor it -- nabrett. yo talked about the impact of this social scienceu experiment. we have a video about kenneth and amy clark who had conducted this test. >> the doll test was integral to the brown versus order to education because it clearly demonstrated that separate was not equal.
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and separate was not good. separate was an injustice. what we're looking at here are the dolls that they used in the doll studies. the dolls heads were a series of mimi clark and kenneth clark did to try to determine racial awareness and young children with the implication being that in a segregated society if children are aware of race and the differences in race and the differences in how different racial groups are treated that it would impact how they felt about themselves. what they did that actually became very well-known and part of the brown case was they showed young children, black and white dolls and they would ask the children, show me the doll
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the dollice, give me that is the best. give me the doll that looks like you. and more often than not, the ,lack children showed the doll the nice stall was the way doll. the doll that was the best was the white doll. lasthe got to that question, give me the doll that looks like you, that is when the children would pause and be a bit more confused or looked troubled and as dr. clark would say because they had said in many cases this is the bad doll, this is the nice stall. and so remembering that they had said this is the bad doll they now had to show the doll that looked like them. and it was particularly
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difficult for them and some --ldren, some black children some chose the white doll that looked like them because they could not embrace after having , theyhis is bad, not nice could not embrace it. courthow often does the rely on social science in making its decision, was this an unusual thing that this became part of the thinking? tomiko: justice brandeis in practice had introduced the reliance on social science into lawyers' practice and though it was not the first time in brown versus board of education that the court relied on the social science i think though that what made this different was at first
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overtime and i am sure it was true then as well, there was some question as to how reliable the doll studies were. it was a simple kind of experiment and one could raise questions about the methodology and all the things that we would think about today in terms of reliability of social science. it was not altogether new but on the other hand the extent to which the brown opinion ends of relying on the doll studies and the idea that black children feel inferior because of segregation i think was profound. it because of the chief justice that they decided to re-hear the case or was that going to be re-heard?
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jeffrey: that is an important question. frankfurter asked for a re-hearing. tomiko: i am not sure what role his death played in the re-hearing. host: they could not come to a decision. jeffrey: they chose not to. they could have voted. frankfurter who tried to take credit for everything insisted that he had special insight into the south because he taught setting students at harvard law so he knew how they would react. he said if we commission this paper about the original understanding of the segregation that will give us some time and beat allow a consensus to happen. frankfurter says there is a god and then girl warning -- role warren is appointed by eisenhower. he was the former governor of california and the
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candidate for vice president when tom dewey ran and he is a all-american moderate republican. this is something -- someone who made civil rights one of his callings in california and called for people to be brought together. he does have one stain on his legacy and that is supporting the japanese interment. hisas attorney general support of that was not until the end of his life and in his memoirs in 1976 fevers -- he expressed remorse and wept when de reflected on what he ha done. this is a time when the democratic party was not the party of segregation and the republican party was the party of lincoln. forewarned to be in favor of civil rights was not unusual. seat,of the supreme court
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it was promised to him and warren says give me the seed. he held onto the deal. worstower says it was the decision he ever made. oft: the second set decisions were held in 19 53. -- 1953. what was the length of oral arguments the second time around and did they ever in the arguments made during the first half? the second arguments time around were focused on these questions -- the problems there, the framers of the 14th amendment
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were not social integrationists in a way that we think of today. so, the question that was put before the lawyers -- the naacp lawyers struggled a bit. the problem was that the answer was not going to be found in the questions that had been put before the lawyers in the court. the seminal question before the court in this case -- does racial segregation of children in public schools deprived minority children of equal protection of the law under the 14th amendment? i would like to have you tell a story, because the chief justice decided that for this decision to work it had to be unanimous. jeffrey: this is a riveting decision and a riveting story. one of the great examples of judicial statesmanship in american constitutional history. the arguments are heard.
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the justices had their vote in the private conference and he begins by saying that this is an easy case. it is obvious that segregation has the intent and purpose and effect of degrading african-americans. then they take a vote. it is not entirely clear what the first vote was, but it was at least 6-3, maybe 7-2. there are two major holdouts, robert jackson, the great advocate of judicial restraint , and stanley reed from kentucky, and ardent segregationist. jackson is in the hospital with a heart attack and earl warren's -- and earl warren visits him and says it is very important , for the court to be unanimous. jackson, who could not see in the original understanding or condition of reason for brown, nevertheless is a new dealer who thinks it is important and he is going to join. finally, it comes down to stanley reed. warren goes to visit him and says, stanley, it will look bad
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for the court and bad for you if this is an 8-1 decision with the dissenter being a segregationist from the south. for the good of the court and the country, you have to make it unanimous. reed, who cares about the court as an institution, agrees to make the unanimous. warren reads the decision to a spellbound courtroom. he says the question is, does segregation violate the 14th amendment? we believe it does. thurgood marshall looks up at stanley reed and cannot believe that this segregationist voted to strike down segregation and looks up and says, you voted? and stanley reed nods down silently and says, yes. a real testament to earl warren's statesmanship, that he was able to create unanimity. susan: let me read a little bit of chief justice warren who wrote the opinion for the court. "we conclude that in the field of public education, the doctrine of separate but equal
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has no place. separate educational facilities are inherently unequal. therefore, we hold that the plaintiff and others similarly situated for whom the actions have been brought are deprived of the equal protection of the laws guaranteed by the 14th amendment. i will let that stand and takes some more calls. let's go to christopher in brooklyn, new york. >> majority of white people were against segregation. and i actually saw your preview of the baby situation -- the white baby looks like an angel and the black baby looks like an ape. death to the -- susan: we going to move on from here. dennis, in palestine, texas.
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hello. chicago, in east indiana. >> good evening. i want to real quickly say that this program and discussion and this show is so vital for our survival, congratulations to your program, this is so vital for the survival of america -- my question is, what do we need to do to keep this going? this discussion has to keep going. our neighborhoods have been robbed of our history and you guys are doing a phenomenal job. whether people agree or disagree with you, we have to keep it going, especially during the presidential election. i love you. thank you very much. susan: that is very kind of you. what i would like, before we leave, i want to get one other thing on the record. you mentioned earlier the cold war and in fact, at least in the , first case, the government
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filed an amicus brief that made the case about the u.s. international reputation being damaged by segregation. i want to ask you both, because often we hear the court saying that is insulated from public opinion. this is one of several cases in the landmark series where wars were going on, or in this case, the cold war, are there seems to be a determined impact on the outcome from the justices' realization of politics or policy impact of what they are reviewing. help people understand how the court functions. we keep seeing instances where politics does impact the decision. >> it is so important to focus --tomikojeffrey: it is so imporo focus on this. we think of brown as a counter and unpopular decision. imposing a quality when most people were in favor of segregation.
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-- imposing the quality when ty when mostequali people were in favor of segregation. it was so pervasive. in fact, 54% of the country supported desegregation at the time. it was an international embarrassment after world war ii. it was something worthy of the nazis. opinion was shifting quickly. it was really the fact that the senate was controlled by a group of southerners who refused to bring desegregation bills to the floor. the fact that both the truman and the eisenhower administration -- eisenhower is no big fan of desegregation. he says warren was a big mistake. but his administration does support breaking down desegregation for all of these reasons. the court is aware of what congress is thwarted from doing. it is aware of what congress has -- what the executive is trying
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to do. it knows about jackie robinson. in that sense, brown followed public opinion, surprisingly. susan: the micro and to the two we will listen to linda macro. -- the micro and macro. we will listen to linda brown talking about her reaction to the first decision. >> time stood still. until an afternoon in may 1954, when i was at school, my father at work, and my mother at home doing the ironing and listening to the radio. at 12:52, the announcement came, the court's decision on ending segregation was unanimous. that evening in our whole was much rejoicing. i remember seeing tears of joy in the eyes of my father as he embraced us, repeating, thanks
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be unto god. >> we move from linda brown to societal changes. what was the reaction in the country to the decision? jeffrey: --tomiko: thurgood marshall was greeted as a hero and icon. there were many african-americans who are very excited about the decision, very hopeful about the decision. the court was viewed over time as a protector of minorities because of the decision. the country, to a lot of people, seemed to be moving in the right direction. on the other hand, there were those who thought the decision was outrageous, that it was the mother of judicial activism, that the court had not followed the law, and that it had not been faithful to its imperative as an institution, that the court had put itself in a position of being a legislator.
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-- being a legislature. there was a lot of pushback against brown versus the board of education. susan: some of that pushback occurred in the congress. i would like to have you talk a little bit about the massive resistance movement. i have two statements, one from the house and one from the senate. first, john bell williams. he made a house floor speech on may 17, 1954. he said "the time is at hand , when the states must reassert their constitutional rights or suffer their own destruction. " " senator harry byrd of virginia who organized the massive resistance movement said --
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they authored what is called the southern manifesto and it was signed by 19 senators and more than 80 representatives, all of them southern democrats. what was the effect of this? that,y: the effect of which you summarized so vividly -- can you imagine calling it tomiko: black monday and signing the southern manifesto precisely to encourage southern states to resist. the resistance was powerful. people across the southbound it private academies to educate their kids. in 1959, prince edward county in virginia closed its public school system rather than obey
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court order to integrate. it's was closed for five years. public schools in south carolina were closed. north slope, charlottesville, warren county schools were all closed by state officials. finally, the resistance culminated in this next her dramatic case. central high school in little rock, arkansas the resistance to , allowing integration is so great that president eisenhower has to call in the national guard. susan: let me take some calls. this is dennis in palestine, texas. >> i just want to say jeffrey rosen is correct that richard kroger isichard and is anwork
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epiphany for this southern boys would only heard one part of the argument. i wanted to ask about a justice -- a law clerk of justice jackson by the name of william rehnquist who, at his confirmation in 1971, the issue came up that he had written a dissent for justice jackson in the brown case when it came before the war and -- for the court, and he said that they were just covering their bets and he did not really feel that way. i just wondered if either of your guests have checked to see the veracity of justice rehnquist's comments. jeffrey: you summarize it very well. it was an important controversy. then memo was quite vivid.
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he said basically that the fact , is that southerners don't like black people and will never admit them and the truth is, i believe that plessy versus was good law. jackson had asked him to express his own thoughts because jackson was undecided. all we know is that justice jackson's secretary disputed rehnquist's account said that he had never asked for competing opinions to be written in his voice and, according to her, rehnquist was expressing his own views. i think that is the most direct evidence. susan: maurice is in memphis. >> good evening. the 14th amendment does not apply to the federal government. although we feel that certain fundamental projections are so important that they appear twice so that the fifth and 14th amendments each have a due process clause.
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the equal protection of the law is a more explicit safeguard of prohibited unfairness then due process of law. i would not assert that that implies the two are always interchangeable phrases. how do you feel about the assertion that the concepts of equal protection and due process are not mutually exclusive? tomiko: i think you are referring to the controversy over bowling versus sharp where a court reads an equal protection component into the fifth amendment. there is a lot of discussion about exactly how the court does this, how the court explains it. i don't think the court goes very far toward an explanation. the fact of the matter is that there was not going to be anyway that you would get one holding
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in the four cases involving the state and a different holding in the case involving the district of columbia, therefore, we get this equal protection component read into the due process clause. as to how appropriate that was, i tend to think that there is an understanding of due process that makes it a very robust concept. the due process clause is based -- is the basis the court uses up using for fundamental rights analysis. so i would say that, you know, they are not the same, but there is an appropriateness to reading that component, the equal protection component into the fifth amendment under the circumstances. jeffrey: if i could just add one
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quick -- justice harland believed that exemption from class legislation or unfriendly legislation based on race was itself a privilege and immunity of citizenship and the court read the clause out of the 14th amendment if you well know -- amendment as you will milk you watched the excellent slaughterhouse episode. susan: what does the brown v board decision due to the legacy of the justice? jeffrey: it vindicated him as one of the great prophets of the 20th century. susan: next is chuck. yes, we can hear you, go ahead. >> hello? although you said that brown
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reversed the plessy decision, isn't it true that railroads continued to ignore the brown decision and continued segregating passenger rail cars until the civil rights act? tomiko: it is not just railroads, it is all kinds of public institutions that don't exactly comply with brown. it takes a very long time for brown to actually be implemented. as jeffrey pointed out, there is a cooper versus aaron decision whether court speaks to the issue of school desegregation. their problem is that unless there is, in the early years after brown -- if there is not these dramatic instances of resistance to the decision, then the school districts are able to proceed in whatever way they see
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fit. it is not until the late 1960's, after the civil rights act, that brown is implemented in any substantial way. susan: our next piece of video is thurgood marshall, giving an interview to mike wallace on cbs on president eisenhower and what he thought of the president's decision and response to the desegregation of schools. this was taken on april 16, 1957. >> i do not think that president eisenhower has done anywhere near what he could have done. i wonder whether it is too late. i don't think it is too late. i think the president should have sharply, after the decisions, at least by now, had gotten on a television network or radio and spoken as the chief
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executive of this government to the good people of the south, urging them to support the decision of the supreme court, as the law of the land whether , they believed in it or not. and, to use the influence of his position to bring about peaceful solutions to this problem. i think he was obliged to do that and i think that his failure to do so does not help us at all, especially when we realize that as a result of the failure of the good forces to take over, we have allowed other forces like the white citizens klan tos and the c threaten and intimidate good people. moral leadership should come from the top executive of the government, it is his responsibility. susan: five months after that decision, president eisenhower sent federal troops in to enforce the desegregation in
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little rock, arkansas. walk us through president eisenhower's legacy. cooper v aaron is incredibly dramatic. you have a court order to integrate central high school. you have students who are being turned away by mobs. you have the governor standing at the schoolhouse door saying he is never going to allow the students to come in and you have president eisenhower's decision to send the national guard to ensure the admission of these schoolkids. and then you have a supreme court which is so afraid that its rule to integrate the schools will not be obeyed, because they are not sure what eisenhower will do, that each of the justices signs a decision in ink, on the system itself. this is never done before -- the y prove their unanimity.
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it seems like a show of strength but it is a sign that they are scared to death that he is not going to follow through. there is language of judicial supremacy that almost overstates the case. this court is supreme in its interpretation of the constitution, seeming to suggest that the president or congress has no role. basically, these are nine men who literally don't know what the president will do. the fact that he did send the troops, and despite his grumbling about earl warren ultimately said the supreme , court has made his decision, i have to enforce the law helps , mitigate eisenhower's legacy. they are interesting revisionist histories that say behind the scenes, eisenhower was aware of shifting politics but he was more supportive of desegregation that he appeared in public. susan: i want to show one more video. warren intually earl 1969.
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he is talking about his frustration to the resistance against the brown decision. >> in some parts of the country, one couldn't help being impatient when they would see the orders of the court and just -- and justice not obeyed in any whereof the word, and illegal things were changed in form but not in substance and carried on, one feels frustrated at that. when the american people as a whole recognize that we have, in past, tomiko: -- we have, in the past been wrong in depriving , certain minorities of their constitutional rights, when we make the decision to say that they will in the future have these rights, then i think we're are on the way to solving most
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of our domestic problems. susan: a couple of things. tomiko: -- a couple of things to say. first of all, i agree that there is a revisionist scholarship on eisenhower that puts a different spin on his views. he sent in the guard. those are important. at the same time i think the , problem for eisenhower as it relates to school desegregation is there is a sense that he is supportive of states rights and there is a sense that he is not really supportive of the principle of desegregation as a personal matter. there is a story about how, at a white house dinner, he was overheard saying that the people
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of the south who were resistant were not bad people they simply , were concerned about the little white girl sitting beside overgrown black boys in the classroom. i do think there was not that personal commitment to brown versus board of education and he , in that sense, was on the wrong side of history. earl warren, not a man who was respected as a great legal thinker, his skills were political. he understood that having the office of the presidency behind the supreme court, having all three branches acting in the same way as we had after 1964 was really the only way that the decision would be enforced. susan: let me take a call from ken in new jersey.
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>> thank you. i have two questions. number one, it is my understanding that despite what you said earlier, that eisenhower said that appointing warren to the supreme court was one of his worst decisions. it is my understanding that at the time that he appointed warren, he intentionally appointed him because of this case and he wanted that to have that kind of a decision. i would like to hear your comments on that. and secondly, it is also my understanding that when eisenhower sent troops into arkansas, it was also the first time that the president, that the executive has stood behind the supreme court, especially since president jackson in 1828 . and i would like to hear your comments. jeffrey: i love the fact that
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you bring up jackson, and he did famously say in the cherokee indians case, he said, john marshall has made his decision now let him enforce it, hamilton's adage that the supreme court has neither person no sword. the fact that he resisted the appointment at all seems to call that into question. i agree with tomiko that despite revisionism, on the whole he was , on the wrong side. if any viewers have a site for that, please tweak it -- please tweet it in. susan: we have 10 minutes to talk about the 60 years of legacy, which is impossible to do. we want to start with its legal legacy. we have four citations of brown,
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in 1964, reynolds versus sims, loving versus virginia, san antonio school district versus rodriguez in 1973, and planned parenthood versus casey in 1992. if you look at its legal legacy, what has it left the country? tomiko: the most important legal legacy of brown, i think goes back to the point that it established the idea that the supreme court can be interventionist to protect individual rights in the most profound way. it was cited in various cases where the issue wasn't school. i will also say that brown has a mixed legacy in part because it , can be interpreted in so many
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ways. you site san antonio versus rodriguez. there is a discussion of that writesn by a justice who about the case which holds that education is not a fundamental right, that is inconsistent with thurgood marshall and a lot of people's understandings of the consequences of brown versus the board of education. so when it came to the question of what it meant for education itself, brown was not persuasive authority on that point. susan: when talking about the integration of schools, from twitter, so far you have not mentioned the hedge, using the phrase, integrating with all deliberate speed, so how did this come into play? how instructive was the court in actual rollout of desegregation?
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jeffrey: thank you for noting that. it is very important. the language came from felix bradford who always had something up his sleeve. he says, i know from english common law and principles of equity that when you are not , sure that a decree will be immediately enforced, you can give the parties discretion and tell them they don't have to do it immediately. this principle was resisted by hugo black, who actually was from the south. black said, you give the south any room, it is going to be worse. frankfurter put in that language and there was lots of other hedges in that decision. giving weight to public and private considerations, they should make a prompt and reasonable start, the courts can consider problems related to administration, but disagreement -- the court did say the vitality of the constitutional principles cannot be allowed to yield simply because of a disagreement. the bottom line is, with all deliberate speed was a huge pass
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to the south, basically saying, go ahead, we are not going to be on you if you resist. it was not until not only the passage of the civil rights act, but the guidelines in the department of health and education and welfare just a few years later that threatened to withhold federal funding to schools that did not desegregate, only then did meaningful desegregation occur so it took more than one decade , after brown actually achieved its promise. the court seems to continue to struggle with affirmative action cases, another scheduled for this term. one what has been the societal legacy? tomiko: another big question. i was appointed to a case about k-12 education and whether school districts could


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